ADULTERY

General definition
Adultery is a voluntary consensual relationship between a married individual
and someone who is not his/her lawful spouse. Adultery is considered as legally
wrong and is a punishable offense. The act of adultery is a crime which
breaches the marriage vows and is detrimental to public morals.
The term ‘adultery’ has its origin in the Latin term ‘adulterium’. The term
comes from the words ‘ad’ (towards) and ‘alter’ (other).
It is an Intentional Sexual Relation between an individual who is married and
someone who is not the spouse of the person. At Common Law, adultery was
unlawful intercourse between a married woman and any man other than her
husband. Almost every religion treats it as an unpardonable sin.
History:
1. In ancient Greece and Roman world, there were harsh laws against
adultery but these were applicable only if the female was married. But
these laws were not relevant if a man maintained sexual relationship with
a slave or an unmarried female.
2. The Bible too forbids adultery and the seventh commandment clearly
states this. In customary Judaism, both the parties were equally
responsible for adultery but it applied only if the female partner was
married. Lord Jesus also abhorred adultery and considered that even
looking at a female lustfully is equivalent to adultery.
3. According to ancient Hindu laws, only the felonious female were
punished and killed while the husbands were considered equal to god and
were left off with warnings only.
Laws:
1. Section 497 of the Indian Penal Code, 1860-Adultery
Whoever has sexual intercourse with a person who is and whom he knows or
has reason to believe to be the wife of another man, without the consent or
connivance of that man, such sexual intercourse not amounting to the offence of
rape, is guilty of the offence of adultery
Essential ingredients:
 sexual intercourse
 woman must be married
  knowledge
 consent or connivance of husband
 should not constitute rape
Punishment: Punishment may extend up to five years imprisonment or fine or
both.
Case: In Kashuri v. Ramaswamy it was held that the proof of sexual intercourse
has to be inferred from the facts and circumstance of a case as direct evidence
can rarely be proved.

2. Section 498 of the Indian Penal Code, 1860-Enticing or taking away or

detaining with criminal intent a married woman
Whoever takes or entices away any woman who is and whom he knows or has
reason to believe to be the wife of any other man, from that man, or from any
person having the care of her on behalf of that man, with intent that she may
have illicit intercourse with any person, or conceals or detains with that intent
any such woman,.
Essential ingredients:
 takes or entices away
 woman to be a married woman
 knowledge
 taken from control of husband or person having care of her on behalf of
her husband
 intention to have illicit intercourse
 conceals or detains such women
Punishment: Punishment may extend to two years, or with fine, or with both.
Case: In Alamgir v. State of Bihar, it was observed that if a man knowingly
goes away with the wife of another in such a way to deprive the husband of his
control over her, with the intent to have illicit intercourse, then it would
constitute an offence within the meaning of the section.

3. Section 198 of the Code of Criminal Procedure, 1973- says only the
husband of the married woman, who had sexual intercourse with another man,
could file a case against the male who indulged in the act with her.
The Judicial Pronouncements on Validity of the Law:

The constitutional validity of the law of adultery in India has been challenged a
number of times but the court has upheld its validity and also the ‘classification’
made under it.
1. In the case of Yusuf Aziz v. State, Section-497 of IPC does not offend
articles 14 and 15 of the Constitution of India on the ground that only man will
be held liable for adultery and not the wife with whom adultery is committed
under section 497 but valid under Article 15 (3) of the Constitution. It does not
offend articles 14 and 15 of the Constitution of India.
2. In case of Sowmithri Vishnu v. Union of India and Anr, the court held that
the wife, who is involved in an illicit relationship with another man, is a victim
and not the author of the crime.
3. In the case of V. Revathi v. Union of India and Ors, the court held that that
Section 497 of the Indian Penal Code does not permit the husband to file a case
against the wife who has performed adultery nor does it permit the wife to bring
a case of adultery against the husband, and thus, the law is not biased towards
anyone.